A DUI Lawyer's Case for Putting an Interlock Device in Every Car

Drinking and driving is a public safety issue, and should be treated as such.

While completing my legal internship (what we lawyer folk refer to as “articles”) with one of Toronto’s most experienced drinking and driving lawyers, the utter insanity of how we, as a society, have chosen to address the scourge of drunk driving quickly became glaringly apparent to me. Drinking and driving offences are among the handful of criminal offences which find themselves in the paradoxical position of being both extremely stigmatized and extremely ubiquitous. Condemnation of drunk driving is universal, but drunk driving itself is almost equally widespread.

This seemingly contradictory state of affairs highlights the relationship between drunk driving and the prevalence of alcohol in our society, and suggests that in a great number of cases, we may merely be criminalizing addiction, albeit in a roundabout way. Beyond the obvious ethical issues that this gives rise to (i.e: recognizing that addiction is a public health issue on the one hand, while simultaneously criminalizing it), it is also an extremely ineffective way of attempting to reduce the incidence of drunk driving, since those suffering from addiction are unlikely to be responsive to increased detectability or harsher sentencing. 

The problem with treating drunk driving as a purely criminal issue: the over 80 offence

One particularity of the impaired driving and excess blood alcohol provisions of the Criminal Code is that they give rise to a situation in which it is entirely possible for individuals who do not feel impaired to get behind the wheel of a car with no intention of committing a criminal offence and still get a criminal conviction for driving while over the legal alcohol limit, or “over 80”. This is particularly true of people suffering from addiction, who generally will have a higher tolerance to the effects of alcohol.[1] And while it is a common adage that ignorance of the law is no defence, as any competent criminal lawyer knows, lack of criminal intent, or mens rea, most certainly is.

For most criminal offences, the question of criminal intent is bound up in broader notions of morality. Indeed, the definition of not criminally responsible for cause of mental disorder in the Criminal Code depends, in large part, on the question of whether or not an accused appreciated that their actions were wrong, not that they were illegal. But for most criminal offences, what people perceive as wrong and what is illegal tend to overlap, and that is why ignorance of the law is no defence. For instance: you may not know which section of the Criminal Code makes it illegal to steal, but you ought to know that it is wrong.

The problem in drinking and driving cases is that the only “criminal” intent that needs to be proven to secure a conviction for a charge of driving over the legal limit is intent to consume alcohol, regardless of the quantity. There is nothing criminal about drinking a driving per se: it only becomes a crime once you exceed 80 mg of alcohol in 100 ml of blood and get behind the wheel. Proof that you knew or ought to have known that you were over the limit is not required for you to be convicted. And while the conventional wisdom is that it is okay to drive after 2 drinks, the fact of the matter is that alcohol absorption and elimination rates vary a great deal depending on factors such as gender, weight and even a person’s individual metabolism.

I am not a scientist, but in my experience of reading studies on the subject and listening to toxicologists on the witness stand, the science surrounding the interaction of alcohol in the body is extremely nebulous. Indeed, having a few drinks then taking the wheel may or may not be a crime depending on, among other things, your gender, how much you weigh and how quickly your body absorbs and eliminates alcohol. And unless you have a breath testing device (like an ignition interlock device) at your disposal , aside from abstinence, there is no reliable way of knowing whether or not you have a blood alcohol level that makes it a crime for you to drive. 

See the problem? It is perfectly legal for you to go out for drinks then drive. But if you have a blood alcohol level that is above a certain threshold (which you have no reliable way of knowing), you will be charged with a criminal offence.

What the law effectively says is: you can drink and drive, but you do so at your own risk of criminal conviction. This allows people who have been drinking, many of whom may be addicted to alcohol and have limited control over how much they drink, to get behind the wheel of their cars and compromise public safety, but then criminalizes them after the fact for a behavior that they might not have even known was criminal and that may have been largely spurred by addiction. This is an absolutely insane way of trying to change people’s behavioral patterns with dire consequences for both public safety and the criminal justice system, which is currently tearing at the seams with the amount of drinking and driving cases it has to process. Crazier still is that this behaviour would have been entirely preventable if only there had been a physical barrier to that person starting their car after having been drinking.

To be perfectly clear, I am NOT advocating for decriminalizing drinking and driving. In fact, installing interlock devices in every car would, in my opinion, justify harsher sentences for impaired driving. Why? because a person caught driving over the legal limit would have to knowingly thwart or bypass the interlock devices, either by tampering with it or having someone else blow. This would significantly increase the moral culpability of the offence, and thus justify harsher sentencing.

the way forward

The recent changes to the Criminal Code have made it easier for police to investigate drinking and driving cases, but they will do absolutely nothing to physically prevent people who have been drinking from getting behind the wheel, except perhaps provide some measure of deterrence, the effectiveness of which is dubious at best, especially for those who struggle with addiction.

Rather than simply giving the police increased power and authority to interfere with our rights and freedoms in the name of combating drunk driving, we should seriously reconsider the way we gone about trying to address the carnage caused by this phenomenon. On the one hand, we want to do everything we can to ensure public safety. On the other, any free and democratic society should be extremely wary of extending police powers, and certainly of granting officers the right to arbitrarily pull people over.

One approach is to have a zero-tolerance policy. In this way, people would at least know that if they had anything to drink at all, they would be committing a crime the moment they got into a driver’s seat. This approach has number of flaws, however. For one, it actually wouldn’t completely address the issue of predictability: I’ve encountered cases where the accused was arrested the day after a night of drinking and did not even know that they still had alcohol in their body. Also, a number of people, particularly those with addiction issues, would undoubtedly still take their chances. At the end of the day, this approach does not create any physical barriers to drunk driving, only added moral barriers.

Another option is to mandate universal installation of interlocks (breath testing devices that prevent a car from starting if the driver has more than the legal blood alcohol concentration). In conjunction with stiffer sanctions for tampering with a device, having someone else blow into the device, or just being in the driver seat of a running vehicle with an illegal blood alcohol level, this would create a physical barrier to drunk drivers getting on the road to begin with, and thus achieve actual prevention as opposed to moral deterrence, the effectiveness of which, again, is highly questionable.

Granted, mandating that all cars be equipped with functioning interlocks would likely create some extra costs for drivers, but these would not be prohibitive and would undoubtedly benefit from economies of scale if universally implemented. There would also likely be a reduction in the cost of insurance as the incidence of accidents involving alcohol would decrease dramatically.

Libertarians will undoubtedly cry foul and clamour that this would be an undue restriction of their freedom. They said the same about seatbelts…

While the purpose of this article is to highlight how far awry we have gone in our attempts to address the blight of drunk driving and not to anticipate every possible criticism of a policy mandating universal interlock installation, I will conclude by submitting that it is a vastly superior alternative to criminalizing tens of thousands of Canadians each year, and that whatever the cost of creating and maintaining the infrastructure that such a policy would require, I am absolutely positive that it is easily exceeded by the toll drunk driving takes on our medical and legal systems.

Drinking and driving is a public safety issue, and should be treated as such. As is often the case, the solution is prevention, not criminalization. 

[1] It is important to note, however, that perceived tolerance to the effects of alcohol has no relationship to the way in which alcohol is absorbed into the blood. This is why the fact that an accused did not feel drunk is not a defence to a charge of “over 80,” but can be a defence to a charge of impaired driving if supported by the evidence (if, for instance there is no evidence of aberrant driving, stumbling or other indicia of impairment).